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Not the worst, but not the best, either

Posted 3/13/18 by Megan Rhyne

When I get together with my counterparts in other states — such as the Florida First Amendment Foundation, Open Oregon, the New England First Amendment Coalition, or the Ohio Coalition for Open Government — I often imagine us as residents of a nursing home sharing our ailments. We nod and tsk-tsk as we exchange tales of the latest abuse of our open government laws.

There’s a bit of one-upmanship going on here. Just as it can be a competition as to who has the worst ailment, access advocates relate horror stories with an expectation that everyone else will agree that his or her state must be the absolute worst: Our law has the most exemptions; our state has the most problems; or, our violations are the most egregious.

I’m sure we all believe ours is the worst because we all have a baseline of what we expect of our government officials and employees. We become acclimated to what our law or our public servants do right so that when they do wrong, it seems all the more unacceptable. What may be foundational on one point in one state may be a current battle in another; and the roles could easily be reversed on a different point.

There is really no objective way to measure which state has the worst law, or even who has it the best. There’s a lot of discretion built into open records and open meetings laws, which necessarily means inconsistent application from city to city, county to county, or state agency to state agency.

There will always be those in government who use that discretion to keep as much of the message to themselves as is legally possible (and sometimes, very rarely, not legally). Consider some of these happenings in other states:

In a short 48-hour period in Washington, state legislators introduced and passed a bill to exempt the legislature entirely from the state’s open records law;

Massachusetts has the dubious honor of being the only state that exempts from its open records law the legislative branch, the judiciary, and the governor’s office;

A teacher in West Virginia was dragged out of a state House of Delegates committee when she began naming which legislators received donations from the oil and gas industry;

The largest school district in Oregon sued a parent and a reporter who requested public records about district employees on paid leave;

The Ohio Supreme Court issued a ruling on access to autopsy reports that essentially created a new exemption for records of “investigative value”;

U.S. Supreme Court Chief Justice John Roberts called the video of a Florida man being handcuffed and removed from a city council meeting just seconds after he began speaking “pretty chilling”; and

The Maryland Supreme Court issued a ruling that would have allowed the names of police officers involved in criminal cases scrubbed from a statewide database of court records.

There is some solace to be taken from the fact that Virginia isn’t the only one facing open government failures. On the other hand, it is frustrating to see the widespread abuses of state open records and open meetings laws.

There is also sincere disappointment every time a local government, school board, or state agency in Virginia takes a position that is dismissive of the public’s right to know.

Just because we are not alone, or just because Virginia is not the worst, does not mean we should stop striving to do better. There are many aspects of Virginia’s Freedom of Information Act that could be improved. There are many times Virginia government officials and employees could choose not to use an exemption to withhold records or go into closed session, many opportunities for Virginia judges to embrace the policy statement of FOIA to interpret provisions in favor of openness.

There are also many chances for us as Virginians to remind our government officials that transparency matters to us. We must remind them that access to public records and public meetings is essential to our ability to accept decisions made in our name, no matter which advocacy groups we belong to, no matter which political candidates we support, no matter our opinion on any given decision the government may be taking. We cannot understand, we cannot monitor, we cannot hold accountable unless we have access to underlying facts.

We don’t have to be the worst state for access in order to want to improve our own state’s access law or to expect compliance with it. By staying engaged and raising our voices in no uncertain terms, we can instead say that we want our state and every state to be the best for access.

Megan Rhyne is the executive director of the Virginia Coalition for Open Government.